Yode Kwao V. Kwasi Coker (1931)

LawGlobal Hub Judgment Report – West African Court of Appeal

Res judicata—Estoppel—Purchase of land by syndicate—judgment against one member of the syndicate binding on the other members.

Facts

Some time before 1896 one N. sold certain land to A. A. sold a portion of this land to T., a predecessor of the defendant.

Later N. sold the land a second time to a syndicate consisting of three persons, B., C., and the plaintiff. This resulted in an action between A. and N. in a Native Tribunal, in which A. was declared to have been owner of the land.

Some time after this B. asserted a right to a portion of the land and was sued for trespass by the defendant in a Divisional Court. The land was found to be the property of the defendant.

In the present suit the plaintiff sued the defendant for trespass on the same land.

Held

Affirming the decision of the Court below, that the title of plaintiff was identical with that of B. and that as he had stood by and acquiesced in the title being determined in favour of the defendant in the Divisional Court, he was estopped now from asserting a title to the land.

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The appeal must be dismissed with costs assessed at £36 1s. 6d

Yawah V. J. E. Maslieno (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Native Custom—Position of Caretaker.

Facts

In a suit before a Native Tribunal the respondent had, as against the appellant, established her claim to certain property. The Tribunal had, however, in its judgment directed that the appellant should continue as caretaker of the land. The appellant appealed to the Provincial Commissioner, and, meeting with no success there, he again appealed to the West African Court of Appeal. Pending this latter appeal he made a successful application for the appointment of a receiver to receive the rents of the property.

Held

His second appeal failed and the Provincial Commissioner then ordered the rents collected by the receiver to be paid to respondent. The appellant appealed against this order, on the ground that as caretaker he was the proper person to whom the rents should be handed over by the receiver.

The Court of Appeal dismissed his appeal, holding that, in the circumstances of the case, native custom did not support his claim, and that he was merely entitled to reasonable remuneration from the respondent.

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I agree therefore that the order of the provincial Commissioner appealed from must be upheld and the appeal dismissed with costs.

Chief Yaw Krampa (Isaac Edward Nkrumah substituted) V. G. A. Sackey (1933)

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Alternative claims —No cross-action—Court without power to enter judgment for plaintiff on one claim and for defendant on the other—Section 58 of the Native Adminatration Ordinance,

The plaintiff claimed to have a deed of conveyance cancelled (_.1) upon the ground of fraud and (2) alternatively upon the ground that the pb,ff. had never

conveyed any land to the defendant The Divisional Court gavet for

the plaintiff on the first issue raised and for the defendant onsecond Or

alternative issue.

Held, on appeal, that since there was no cress-action the plaintiff was entitled to judgment if he succeeded on either of the alternative grounds upou which be band his claim, and that no judgment could he entered for the defendant in respect of the ground which failed. further, that in any case section 58 of the Native Administration Ordinance precluded the Court from deciding the question raised by the alternative ground of claim, namely, whether or not there had been a conveyance of the land in accordance with native custon2.

A Wu v. Baniu, F.C. 1920-29 page 470, considered and applied.

W. Ward Brew for the Plaintiff-Appellant. E. C. Quist for the Defendant-Respondent. The following judgments were delivered :—

MICHELIN, ACTING C.j. THE GOLD COAST COLONY.

This is an appeal by the plaintiff from the judgmentof Howes, J. dated the 19th July, 1932, in which he entered judgment for the plaintiff on the first part of his claim, and for the defendant on the second part of such claim.

On the appeal coming on for hearing before this Court, by consent of Counsel on each side one Isaac. Edward Nkrurnah was substituted for the plaintiff Chief Yaw Krampa, who had died since the judgment in the Court below was delivered.

In the writ of summons upon which this judgment was given the plaintiff claimed in a representative capacity as head of his family for and on behalf of the other members of such family that the deed of conveyance dated the 10th of April, 1919, alleged by the defendant to have been executed by the plaintiff and conveying a piece of land situate at Kwaman in the Winneba District and in the Agona Division, the property of the plaintiff’s family, be delivered up to this Court for cancellation on the grounds of fraud, or in the alternative a declaration that the plaintiff has never conveyed any piece or parcel of land to the defendant.

It seems clear to me from the wording of the writ that the plaintiff sought to set aside the deed on two alternative grounds :—-

1. On the ground of fraud, and
2. On the_ ground that there had been no conveyance of the land purporting to have been conveyed by this deed.

Ya Amene V. Kofi Amanor (1931)

LawGlobal Hub Judgment Report – West African Court of Appeal

Administration of Estates of deceased natives—Native Administration Ordinance, sections 43 and 44—Application to the Court for Letters of Administration—Jurisdichon of Court.

Facts

Sections 43 and 44 of the Native Administration Ordinance confer on Native Tribunals exclusive original jurisdiction in ” suits and matters relating to the succession to the property of any deceased native ” who had at the time of his death a fixed place of abode within the State or Division.

Held

On a case stated by a Divisional Court it was held that—

1. The effect of the above sections is not to deprive the Court of jurisdiction to grant letters of administration to the estate of a deceased native.
2. It is not necessary that an applicant for letters of administration should have first established his right to succeed in a Native Tribunal.
3. When the application for letters Of administration develops into a dispute as to the right of succession, the cause or matter does not thereby become one properly cognizable by a Native Tribunal so as to oust the jurisdiction of the Supreme Court, and make it necessary to refer the parties to a Native Tribunal.

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I will only add that such has been my practice in the past.

Omosanya A. Wyndham V. Percival H. Bravo Jones (1932)

LawGlobal Hub Judgment Report – West African Court of Appeal

The Moi$ey-lenders Ordinance of Sierra Leone, section 4—Money- lenders to carry on their money lending business in their registered names and under no other names or descriptions—Effect of omission to add the word ” money-lender ” to such a person’s correct name and address in a mortgage deed.

Facts

Section 4 (1) of the Money-lenders Ordinance of Sierra Leone directs that a money-lender shall carry on his money lending business in his registered name and in no other name and under no other description.

Penalties are provided in the same section for any breach of this enactment. In a Mortgage Deed entered into between a borrower and a registered money lender the latter’s correct name and address were given, but he was not described in the Deed itself as a money lender. The Supreme Court of Sierra Leone held that this omission was sufficient to constitute a breach of the provisions of section 4 of the Ordinance and, consequently, to render the Mortgage Deed illegal and a sale made thereunder invalid.

Held

On appeal, that as the money-lender had not been described at all in the Mortgage Deed he could not be said to have been incorrectly described therein. There was therefore no breach of section 4 (1) of the Ordinance and the Mortgage Deed was legal and the sale thereunder valid.

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The appellant will have his costs in this Court and the Court below.

C. H. Smith V. Societe Commerciale De L’oust Africain (1932)

LawGlobal Hub Judgment Report – West African Court of Appeal

Agreement for commission on amount of Judgment—Champerty– Maintenance.

Facts

In an action for an amount claimed by the plaintiff as commission for the recovery of debts due to the defendants it was held by the Judge of the Circuit Court of Ashanti that the agreements for the recovery of such commission were champertous, and judgment was therefore given in favour of defendants.

Held

That although the English Common Law as to Champerty and Maintenance was in force in Ashanti, the agreements upon which this action was brought were not champertous.

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The appeal was therefore allowed.

R. A. Sasraku V. Okine & Ors (1930)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Trespass—Previous judgment between privies—Compromise on appeal—Rejection of judgment because compromise not tendered in evidence at same time.

Facts

One Sasraku and one Kofi Kwesi had a dispute concerning certain land and instituted cross-actions to determine the title. There had been a previous action with reference to the same land, viz., Jotchi v. Nkum, in which judgment was given in favour of Nkum. Jatehie appealed, but the appeal was not decided, the parties entering into a compromise.

Sasraku, alleging Nkum to be his picdecessor in title, tendered in evidence the judgment in fatchie v. Nkum. The Court below refused to admit it, unless the compromise was tendered at the same time, on the ground that, without perusing the compromise, the Court was not in a position to say whether the compromise had or had not the effect of a judgment of the Full Court.

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On appeal, the decision of the Court below was upheld.

Chief Kwamina Sakyiama V. J. M. Cook (1932)

LawGlobal Hub Judgment Report – West African Court of Appeal

Review—Refusal to—Section 74 (1) of Native Administration Ordinance as amended by Ordinance 23 of 1931,—Such amendment not retrospective in effect.

Facts

In an action for slander, the Native Tribunal of the Paramount Chief of Cape Coast delivered judgment in favour of the Plaintiff for £4 Is. damages and £74 Ifis costs. An application for leave to appeal from that judgment was refused by the District Commissioner on the ground that section 74 (I) of the Native Administration Ordinance specifically limited appeals from a Paramount Chief’s Tribunal to a District Commissioner in cases other than in land cases to cases in which the subject matter of the appeal was £5 or upwards exclusive of costs.

Held

On appeal to the Divisional Court of Cape Coast from that decision, the appeal was dismissed, and on a further appeal to the West African Court of Appeal, that appeal was also dismissed.

On a motion being made to the West African Court of Appeal to review its udgment on the ground that since the decision of the District Commissioner, the provisions of section 74 (1) of the Native Administration Ordinance had been amended by Ordinance No. 23 of 1931 so as to allow an appeal as to costs exceeding £5, it was held that such amending Ordinance had no retrospective effect.

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The application for a review was accordingly refused.

J. S. Sagoe V. John Walkden & Ors (1931)

LawGlobal Hub Judgment Report – West African Court of Appeal

Contract—Principal and Agent—Unsatisfied Judgments against Agent’s Brokers—Not a Bar to Action against Agent on Contract– Joint and Several Liability.

The plaintiff, as agent of the defendants, was advanced sums for the purchase of produce under a written agreement. The plaintiff made advances out of these sums to brokers with the permission of tte defendants. A number of brokers defaulted and the defendants sued and obtained judgments against them. but the judgments remained unsatisfied. –

In the present suit the plaintiff claimed a certain sum due him by the defendants. This was admitted by the defendants, but the latter counterclaimed under “a clause in the agreement which made the plaintiff liable for all advances to brokers in excess of £1,500.

The Court below gave judgment for the plaintiff on the claim and counterclaim, on the ground that the defendants, having sued and obtained judgment against the brokers, could not now turn round and sue the plaintiff because those judgment* had not been satisfied.

On appeal this judgment was set aside and judgment was entered for the defendants on the counterclaim on the grounds that,—

1. The causes of action against the brokers and the plaintiff were not h e same, that against the former being for money had and received and that against the latter being as a clause in the contract.
2. The relation between the plaintiff- and the brokers was not that of principal and agent, and the defendants were not therefore debarred from suing first one and then the other.
3. The liability of the plaintiff and the brokers was not joint but joint and several.

K. A. Korsah for the Defendants-Appellants. W. E. G. Sekyi for the Plaintiff-Respondent. The following judgments were delivered :–

DEANE, C. J. THE GOLD COAST COLONY.

In this action the plaintiff sued the defendants for the sum of £381 17s. 8d. which he alleged was due to him by them for monies deposited with them and for commission on cocoa purchased by him as their agent. The defendants denied indebtedness of the sum claimed or any part thereof, and alleged that the plaintiff, as their agent, having in breach of an agreement with themadvanced a sum of £880 for which under the agreement he was personally liable, he was indebted to them on balance in the sum of £498 2s.- 4d. for which they counterclaimed.

Counsel for the defendants states thal at the trial he applied for an amendment of the writ by inserting after the words John Walkden & Co.” the word ” Limited,” but that the learned Judge refused to entertain the application on the ground that it w►c too late. As, however, it appears from the agreement which has been

put in evidence that the defendants are therein described as John Walkden & Co. Ltd., and it is agreed that this is their proper description, we think that the writ should be amended so that the defendants may be sued under their right name and accordingly order that the word ” Limited ” he inserted in the writ after the words ” Walkden & Co.”

At the trial the learned Judge ruled that the defendants should begin, and counsel appearing for them in this Court has asked us to say that his ruling was wrong. He argues that inasmuch as there was a total denial of indebtedness by the defendants the onus was on the plaintiff to begin as it was for him to prove his case. On persual of the counterclaim filed by defendants, however, it will be found that they allege that there is due to them a balance of £498 2s. 4d. after giving plaintiff credit for the sum of 381 17s. 8d. which he claims, and although as a general rule when indebtedness is denied by defendant the plaintiff must begin 1 am of opinion that in the circumstances of this case the learned Judge was justified in treating the credit in the counterclaim as an admission that plaintiff was entitled to that sum, and that no injustice was done by his calling upon defendants to begin.

The facts in this case which were proved and which are really not in controversy are as follows :—The plaintiff was employed by defendants who carried on business as merchants and produce dealers in the Colony as their agent to buy produce under a written agreement dated 1st October, 1929. This agreement provided (inter alia) by paragraph 4 • as follows :-

“Subject as hereafter provided the agent shall be at liberty to sell goods on credit and /or to give out on credit moneys for the purchase o produce provided that the amount owing for goods so sold and /or for moneys so given out on credit are secured to the Company by mortgage or mortgages of house or landed property of substantially greater present market value than the amount secured or by the guarantee of a person or persons of means and standing or some other sufficient security to be approved by the Company. The aggregate amounts owing to the Company for goods sold on credit by the agent shall not at any time exceed the sum of £1,000 (One thousand pounds) and for moneys given out on credit for the purchase of produce the sum of £1,500 (One thousand five hundred pounds) or such larger or smaller amounts respectively as the Company or the senior agent may from time to time notify in writing to the agent. Should the aggregate amount or amounts so owing at any time exceed the above mentioned respective figures or such larger or smaller amounts respectively as the Company or the senior agent may from time to time authorise, the agent shall be personally liable for the excess notwithstanding that the Company may have waived its rights in respect of a prior infringement or infringements.”

Then by paragraph 15 of the agreement it was further provided

” The Compa,ny shall have power to deduct and retain any sum or sums for which the agent shall be responsible or which may become due from him to them under any of the provisions hereof from any salary or commission due to the agent hereunder or from the proceeds of any security which may from time to time be vested in them as security for any such sum or sums.”

Plaintiff carried on under the agreement advancing sums to various brokers or sub-buyers for the purchase of produce, and was urged from time to time by the Company to keep his advances within the limits prescribed by his agreement ; but on 30th April,

1930, when the agreement between himself and the Company save was terminated, i t appeared that as from 18th October, 1929, the widen & date of the agreement, there was due to the defendants for moneys Co.

advanced for the purchase of produce, and for which they had_c,

received no produce, no less a sum than £2,914 14s. 10d. Plaintiff*

had prior to 30th April, 1930, instructed the Company’s solicitor to take legal steps against the brokers for the recovery of these moneys, and everything possible by way of realising the securities and obtaining judgments had been done, but there was still due to the defendants when the writ was filed a sum of £2,380, which the defendants had been unable to recover, representing monies advanced by the plaintiff for the purchase of produce. The defendants therefore pleaded that they had a right, under paragraph 15 of the agreement, to deduct the sum of £381 17s. 8d. which they owed the plaintiff for commission, from the £880 which represented the excess of monies over the £1,500 allowed: for advances for produce, and for which under the agreement he was personally liable to them, and they counterclaimed for £498 2s. Ad. the balance of £880 due to them after such deduction.

On these facts the learned trial Judge gave judgment for the plaintiff on both the claim and counterclaim with costs. He stated ” the Company sued several of the brokers in their own name to recover these advances, and in all cases obtained judgments many of which are unsatisfied, and it is upon the amount of the unsatisfied judgments that the counterclaim is based.

” It is established law that the defendants could have adopted two courses to recover these monies : they could had they chosen, have sued the plaintiff as their agent for monies had and received for their use, or they could, as they did in fact do, sue the several brokers for the several amounts as the agent was at all times acting for a disclosed principal, but they cannot, having elected to sue the several brokers and obtained judgment even if unsatisfied, turn round and subsequently claim against the agent as there is only one cause of action. The case of Isaacs & Sons v. Salbstein, (1916) 2 K.B. 139, is in point.”

The learned Judge has, if I may so respectfully, in my opinion entirely misconceived the law. It was not open to the defendants, as he states, to sue either the plaintiff or the brokers ; on the contrary in suing the brokers they took the only course open to them to recover the advances made by the plaintiff to the brokers with their permission, since an agent acting within the scope of his authority incurs no liability vis-a-vis his principal. It is true that if a person having a right to elect which of two parties to sue—principal or agents—sues one to judgment he cannot recover against the other, but that was not the case here since the relation of principal and agent did not exist between the brokers and the plaintiff so as to give the defendants the right to elect which of them to sue. This relation of agency existed only between the plaintiff

and the defendants, and the brokers, had they been aggrieved in the course of the business transactions with the plaintiff as agent of the defendants, would have had to elect which of them they should sue.

There was thus no relation of principal and agent between the debtors so as to preclude the defendants, having sued one of them to judgment, from afterwards suing the other. Nor did their liability arise out of one cause of action as stated by the learned Judge. The liability of the brokers was for the monies advanced to them in the ordinary course of business to purchase produce, and was thus for monies had and received by them from the defendants ; the liability of the plaintiff arose out of his failure to keep within the limits of advance prescribed in his agreement, so that he became liable for any sums due- to the defendants by the brokers in excess of 0,500. To say, therefore, that there is one cause of action is manifestly to misconceive the position, since the plaintiff could not be sued like the brokers for monies had and received. He kept none of the money but passed it to the brokers in his capacity as agent of the defendants. The brokers, on the other hand, could not be sued like the plaintiff for exceeding the amount of advances allowed under his agreement since they had nothing to do with it.

There was, in short, neither a joint contract nor the relation of principal and agent between the brokers and the plaintiff on one side as debtors and the defendants on the other. But the very case of Isaacs & Sons v. Salbstein quoted by the learned Judge, lays it down that where there is no joint contract or relation of principal and agent, an unsatisfied judgment against one person for the price of goods sold is not a bar to a subsequent action against another for the price of the same goods. So in this case, as there is no joint contract or relation of principal and agent between the plaintiff and the brokers, unsatisfied judgments against the brokers are no bar to a subsequent action against the plaintiff with respect to his indebtedness.

But it may be argued that even granting that the liability of the brokers to the defendants arose out of the advance of monies to them by the plaintiff as agent of the defendants while the liability of the plaintiff arose under the agreement which made him liable for advances in excess of £1.500, yet to the extent of the £880 the plaintiff and the brokers were jointly liable to the defendants, and therefore the latter, having got judgment against the one, could not sue the other afterwards. The answer to that, of course, is that the liability was not only joint but also several, and in that case there is no rule precluding a joint and several debtor from being sued. As was stated in Lechmere v. Fletcher 1 C. & M. pages 623 and 535 by Bayley B , ” There are many cases in the books as to joint and several bonds from which it appears that though you have entered judgment on a joint and several bond

against one obligor, you are still at liberty to sue the other ; unless indeed the judgment has been satisfied : but so long as any part of the demand remains due you are at liberty to sue the other notwithstanding you have obtained judgment against one.”

Paragraph 4 of the agreement was in fact in my opinion devised to meet the very circumstances of the present case : the plaintiff had to guarantee to the defendants any sum in excess of £1,500 advanced by him in breach of his agreement in order that, so long as there was a shortage, the defendants who had failed to recover it from the brokers might be able to come upon him.

For these reasons I think that the judgment in the Court below was wrong and should be set aside, and that judgment should be entered for the defendants on the claim with costs in the Court below, and on the counterclaim for £498 2s. 4d also with costs in the Court below.

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The defendants are also entitled to the costs of this appeal assessed at £70 8s.

The Court below to carry out.

TEW, C.J. SIERRA LEONE. I concur.

MICHELIN, J.
I concur.

Samuel David Paipoe V. Bank of British West Africa (1933)

LawGlobal Hub Judgment Report – West African Court of Appeal

Action for account—Claim for refund of money alleged to have been paid by mistake—Compound interest charged on overdraft at the rate of 10 per cent with monthly rests—Custom of Bankers—Notoriety of custom—Acquiscence.

In an action brought by a customer against his Bankers for an account to b.; taken of the moneys alleged to have been overpaid by him in respect of interest charged on his overdrawn current account it was held as follows, affirming the judgment of the Court below :—

1. That there had been no over payments by the plaintiff to the defendants.
2. That the money paid by the plaintiff to the defendants to settle his over-drawn current account was not paid by mistake.
3. That the charge of 10 per cent compound interest with monthly rests on an over-drawn current account was fair and reasonable, and in accordance with the well recognised custom of Bankers in England and the Gold Coast.
4. That such custom had been proved to be well known to the plaintiff who acquiesced in the rate of interest charged against him.

R. E. Phipps for the Plaintiff-Appellant.

C. C. Carter for the Defendants-kespondents. The following judgments were delivered :-

MICHELIN, ACTING C. J. THE GOLD COAST COLONY.

This is an appeal by the plaintiff from the judgment of the Chief Justice (Sir George Campbell Deane) dated the 30th of December, 1932, in which he gave judgment for the defendants with costs.

By his writ of summons dated the 8th of July, 1932, as amended in Court on the 21st of September, 1932, the plaintiff claimed that an account should be taken of what sums had been overpaid by the plaintiff to the defendants as interest on his overdrawn account with them or otherwise from the 1st of January, 1918, to the 11th of February, 1932, the date of the settlement of the said overdrawn account, and for payment to the plaintiff of the amount so found due with interest thereon from the date of such payment to the date of filing of the writ of summons herein.

Pleadings were ordered by the Court and filed by Counsel on

each side, and after an exhaustive hearing the Chief Justice delivered

a written judgment on the 30th December, 1932, in which after

setting out the facts and the law, he concluded as follows :—

” I am of opinion that the money paid by plaintiff on the 11th of February, 1932, to settle his account with the Bank was not paid under any mistake, but that on the contrary right through he knew of what was being done and agreed to it. I am further of opinion that the charges against plaintiff

right through were the customary and usual charges of Banks in the Gold Coast and fully justified, and I see no reason for reopening the account which has been settled.”

” There must be judgment for the defendants with costs.”

Three grounds of appeal were originally filed, but in arguing the appeal Mr. Phipps, on behalf of the appellant, confined his submissions to the following two grounds, abandoning the second ground :-

(1) Some material findings of fact were against the weight of evidence.

(3) The judgment was wrong in law.

He dealt with these two grounds together, and his submissions for the purpose of convenience may be grouped under the following five headings :-

1. Question of verbal agreement with Bank for overdraft in January, 1918.
2. Was the Bank justified in charging 10 per cent compound interest with monthly rests ?
3. Was there acquiescence on the part of the plaintiff in regard to such charges ?
4. Was the account closed on the 17th August, 1921 ?
5. Was the account closed on the 18th November, 1922 ?

In arguing as to (1), Mr. Phipps submitted that at the beginning, when the plaintiff started to negotiate with the Bank for an overdraft, it was verbally agreed between the parties that for allowances covered by any fixed deposit, the plaintiff should pay to the Bank interest at the rate of 6 per cent per annum on any overdraft up to the limit of any fixed deposit they might hold for the plaintiff, and interest at the rate of 8 per cent per annum on sums in excess of such limit. Instead of complying with that agreement, however, the Bank charged him interest at the rate of 8 per cent when the overdraft was below the amount of the plaintiff’s fixed deposit, and they also charged him fluctuating rates of interest according to the instructions received from time to time from the head office, and capitalised this interest with monthly rests, which was a breach of the verbal agreement entered into between the parties. In proof of his contention as to this agreement, learned Counsel referred the Court to the evidence of the plaintiff at page 19 of the record in which he stated as follows :-

” The deposit was a fixed amount.

” For any overdraft up to £2,500 I agreed to pay 6 per cent per annum and it was agreed that for any sum overdrawn beyond £2,500, 8 per cent whether it was secured or unsecured.” He also referred to page 138 of the Bank’s ledger which was

admitted in evidence as exhibit ” AA ” where the following entry in

red ink appears at the top of the page :—

” Covering any overdraft in current account fixed deposit 25 /168 £2,000, interest 6 per cent.

The knowing note in pencil being made under this entry : S. D.

PaPPx^,

” 8 per cent excess.”v.

In dealing with-=matter, the learned Chief Justice in the B.S.W.A.

course of his judgment stated as follows :—Michelin,

” it is at mice apparent therefore that the course of Ag: business hehveen the parties as shewn by the Bank’s ledger is quite inconsistent with the agreement which plaintiff alleges was made with the defendants.

” Yet we can hardly believe that had such an agreement been made preliminary to the granting of the overdraft, as the plaintiff alleges, it would no_t at once have been reflected in the defendants’ books unless they consciously and deliberately from the first intended to defraud him. Instead of being so reflected what do we find Intiirest for the first 11 months at 8 per cent then at rates varying between 9 and 10 per cent for a year and only after that for the first time at 6 per cent on the sum secured by deposit, 9 per cent on the excess. These figures are to =my mind significant.

••••

On the very question of the amount of interest therefore I find, if we except the plaintiff’s statement made 13 years after the event, there is nothing to support the plaintiff’s claim that he made a special agreement with the Bank as a preliminary to obtaining an overdraft at the rate he says he did, and that the probabilities of the case are decidedly against him.”

Although the learned Chief Justice did not deal specifically with the entry in red ink and the pencil note at the top of page 138 of the ledger, it is clear that this entry cannot be regarded as forming evidence of any verbal agreement entered into between the parties.

It does not form one of the entries in the ledger made in the ordinary course of the business of the Bank. Although it is alleged by the plaintiff that this agreement was made in January, 1918, the entry in red ink appears for the first time in the ledger in the month of April, 1918.

The fact that it represented an agreement made between the parties is completely refuted’ by the entries in the defendants’ books showing that different rates of interest were consistently being debited by the defendants to the plaintiff’s account.

It is significant also that in a letter dated the 7th September, 1927, from the plaintiff to the defendants’ Manager in Accra (exhibit ” R “), he stated inter aka as follow: :—

” In reference to my account you will observe that from the business I have done with you from 1918 to 1923, sometimes my overdraft has stood up to a debit balance of between £25,000 to £50,000, bearing as you are aware a considerable money having interest running per month, apart from the interest riming when the account was brought down to the

agreed limit of £8,000 and from which it has been reduced to where it is to-day,” no mention whatever was made as to the verbal agreement for a charge of 6 per cent interest.

Again when the plaintiff wrote the General Manager of the Bank in London on the 14th November, 1931, in which he went at some length into his accounts and dealt with the question of the interest charged, no mention whatever was made by him in this letter of the fact that there had been a verbal agreement as to a charge of 6 per cent interest.

In my opinion therefore the finding of fact of the learned Chief justice as to the non-existence of this verbal agreement, was amply supported by the evidence before the Court, and I see no reason to dissent from such finding of fact.

In dealing with heading (2), Mr. Phipps submitted that the defendants had no authority for charging fluctuating interest and capitalising such interest with monthly rests as had been done in the present case. He contended therefore that the learned Chief Justice was wrong in holding that the rates of interest charged and the practice adopted of charging compound interest with monthly rests were in accordance with the universal custom of Banks in this Colony. He contended that in order to establish a custom, it was necessary to prove that the custom was notorious and also that it was reasonable and legal, and referred us to numerous authorities in support of his contention.

The law is very clearly set out in Roscoe’s Evidence in Civil Actions, 19th Edition at page 21, as follows :—

” The usage must be shown to be certain and reasonable and so universally acquiesced in that everybody in the particular trade knows it, or ought to know it, if he took the pains to enquire.”

In proof of custom the learned Chief Justice had before him the evidence of Mr. Kirk, the Manager of the Accra Branch of the defendants’ Bank and also the evidence of Mr. Passells, Accountant to the Accra Branch of Barclay’s Bank Limited.

In the course of his evidence, Mr. Kirk states as follows :-

” The usual rate of interest against overdraft accounts secured by mortgage would be 10 per cent compound interest. Simple interest is never charged on such accounts. Compound interest is charged with monthly rests invariably—that is in accordance with the Bank’s custom.”

Mr. Passells in the course of his evidence stated as follows :-

” I have had 13 years experience of overdrafts in current accounts allowed by the Bank secured by legal mortgages on local properties. 10 per cent is the usual rate of interest charged on such overdrafts with monthly rests, interest at the end of each month is carried to the debtor’s overdraft account and increases the capital on which interest is charged for the

follow* month. The same rule applies in Nigeria and S.

Sierra Leone. Banking business is carried on, on same lines in ^Par^a

all three West African Colonies.”B.B.W.A.

Mr. Phipps referred us to the case of Moore v. Vougkton, 1 _Mk= Stark. 487, in which in an action by Bankers for money lent, the A_g: c.j. Court held it was not sufficient to show that it was the general

custom of the house to charge interest calculated upon half yearly rests without also showing that defendant knew that such was the position, and to the Canadian case of Standard Bank v. Brodreckt referred to at page 265 of Volume 3 of the British and Empire Digest, where in an action to recover an overdrawn account compound interest at ₆ per cent per annum, with monthly rests, was disallowed. In the first case it will be seen that the action was not in respect of an overdraft, but was in respect of money lent. In the second case, not having the report, it is impossible to say upon what grounds the judgment was based.

In the recent case, however, of Inland Revenue Commissioners v. Holder (1931) 2 K.B. 81, where the previous cases on the subject were considered, Lord Hanworth, Master of the Rolls, in the course of his judgment stated as follows :—

” The decision of the Commissioners was based upon the judgment in Parrs Bank v. Yates (1898) 2 Q.B. 460. The case is important for it recognises the system of bankers in turning interest intocapital as usual and binding on the parties who have acquiesced in it. It seems to be a question in each case whether the customer did acquiesce in it. (See Fergusson v. Fyffe 8 Cl. and F. 121, and Spencer v. Wakefield (1887) 4 T.L.R. 194). The plan of capitalising interest at the end of each half year was adopted by bankers in order to enable them in effect to secure what is usually termed compound interest, which could not have otherwise been claimed by reason of the usury laws.”

It is clear from this judgment that the custom of charging compound interest with rests is a well recognised custom of Bankers in England.

In my opinion the notoriety of the custom in this Colony was sufficiently proved by the evidence of the representatives of the only two banks carrying on business in the Gold Coast, and it is quite clear from Exhibit ” R,” to which I have previously referred, that the plaintiff must have been fully aware that he was being charged interest in accordance with this custom.

As to the question of the reasonableness of the custom, according to the evidence of Mr. Kirk the Bank would gain only £23 a year by charging compound interest with rests instead of simple interest, on £5,000.